E-discovery: 4 important lessons from the restaurant business

In the Aug. 13 edition of theNew Yorker, Atul Gawande, a physician at Partners HealthCare in Boston, wrote about lessons hospitals can learn from the Cheesecake Factory restaurant chain. As I read the article, I thought about the ways in which e-discovery is also driven by the same priorities as a restaurant.

Dr. Gawande tried to fathom how the chain succeeds in delivering a wide range of items (he reports that there are 308 dinner items and 124 beverage choices on the menu)with consistent quality at a reasonable price. After spending time in the kitchen and interviewing both managers and cooks, he posits, in part, that the secret lies in routinizing what can be routinized, so that the restaurant can focus its discretion on the variables that it cannot precisely control. The Cheesecake Factory implements this model with precise instructions as to preparation and plating, which then provide the basis for quality control (QC) review; extensive training for the food preparation staff, so that they can work quickly and exercise judgment where necessary; the promotion of experienced kitchen managers who rise through the ranks and, consequently, get respect from the line; and an intense focus on efficiency.

I respectfully suggest that, in e-discovery, we are looking at the same paradigm as the Cheesecake Factory. Most of the steps involved in processing data from harvesting to production are essentially the same in every case, but, there are variations, such as differences in search terms or the type of data, that require judgment. If quality is to remain high, preplanning is essential, so that work can move along at a steady pace and reviewers do not get “in the weeds,” restaurant talk for the chaos that results when the kitchen falls behind in “producing” food to the dining room. Although clients will pay a reasonable fee, they recognize that there are numerous competing sources for e-discovery and they do not want to be surprised by the bill that the firm presents at the end of the meal.

So here are some suggestions for managing e-discovery projects so that the result is satisfying, filling and reasonably priced.

1. Pick just a couple of review platforms with which to work. The industry is booming with vendors, each of which has some bell or whistle that supposedly differentiates its product. The reality, though, is that there are really only two divisions: predictive coding and traditional word search. Everything else, while presenting a different look to the screen and, perhaps, utilizing some variation in the way the algorithms work, is not outcome determinative. If counsel are only using one or two platforms, reviewers will become more proficient in managing the mechanics of the screen and can move through documents more quickly. Yes, lawyers are idiosyncratic and we all want the platform we want, however, irrelevant the differences. Dr. Gawande points out, though, that, at Massachusetts General Hospital, 75 percent of knee implants now come from a single manufacturer, resulting in faster healing and lower cost; we lawyers certainly cannot be more obsessive and hidebound than surgeons. Convincing lawyers to utilize a single platform will take persuasive powers from litigation managers and the investment of time to educate lead counsel that the elimination of his or her pet platform will get an equivalent or better result for the client at a lower cost.

2. Use a dedicated team of reviewers. One of the secrets to speed and accuracy in the Cheesecake Factory kitchen is the training. Dr. Gawande reports that the teaching process on a new menu takes seven weeks. As a result of this intense training, line cooks can reduce the amount of time they spend referring to the detailed recipes. The author quotes one cook on the broiler station as reporting that “I have the recipes right here,” pointing to his head. There is a tendency in the review process to use associates or paralegals who either are assigned to the case generally or who have capacity in their schedule. Review is a specific skill, and developing a review SWAT team that moves from case to case makes every case move more quickly, with attendant reductions in cost.

3. Routinize the work. It is common practice to have a “cookbook” of procedures and search terms for each separate case. But, some things remain fairly constant and, for real efficiency, those procedures have to deviate as little as possible from case to case. While the nature of data may drive some variations in the time that it takes to review documents, one can predict, within a range, how long it takes to process or review a gigabyte. This provides the basis for scheduling, by working back from the production date or dates. No matter what the case, harvesting and search term development can happen contemporaneously; if dual tracking is an established, written process, the case moves more quickly than if attorneys need to remember scheduling anew on every matter. Further, the manual can establish a process for setting time frames, so that lawyers and QC managers can tell if a case is falling behind (orange and red lights flash in the Cheesecake Factory kitchen if plating falls behind the anticipated delivery time).

4. Think savings. In review, since most firms bill hourly, time always equals money. The New Yorker article reports that, to manage costs, the Cheesecake Factory monitors waste so that no more than 2.5 percent of purchased food is thrown away. Imagine if 97.5 percent of review hours were spent correctly including, excluding or analyzing documents. This can only happen if those developing and supervising the review protocol always have cost reduction at the forefront of their thoughts.

E-discovery is not the haute cuisine of a lawsuit. The simple goal is to generate a satisfying review with as few wasted steps as possible and a client experience that is totally predictable. The kitchen model can produce those results. Bon appetit.